Nim Pincho Bhutia v. Bhim Bahadur Rasaily/Kami & Ors.

#8. Mr. Nim Pincho Bhutia, S/o Kancha Bhutia, R/o Swayem, Namok Swayen G.P.U., Namok Block, Kabi Sub-Division, P.O. Swayam, P.S. Mangan-737116. …… Respondents Writ Appeal under Rule 148 of the Sikkim High Court (Practice and Procedure) Rules, 2011 (against the judgment dated 8th July 2022 passed by the learned Single Judge in WP(C) No. 33 of 2020) -------------------------------------------------------------------------------------------------- 4 W.A. No. 05 of 2022 Nim Pincho Bhutia vs. Bhim Bahadur Rasaily/Kami & others & W.A. No. 07 of 2022 State of Sikkim & ors. vs. Bhim Bahadur Kami (Biswakarma) & others Appearance: Dr. Doma T. Bhutia, Senior Advocate and Additional Advocate General with Mr. S.K. Chettri, Government Advocate, for the Appellants. Mr. Sudipto Majumdar, Senior Advocate with Mr. Bhusan Nepal, Advocate, for the respondent nos. 1 to 6. Mr. Chewang Norbu Bhutia, Advocate on behalf of Mr. Jushan Lepcha, Advocate, for the respondent no.7. Mr. Jorgay Namka, Senior Advocate as Legal Aid Counsel with Mr. Prajwal Rai, Advocate for the respondent no.8. -------------------------------------------------------------------------------------------------------- Date of hearing : 20th October, 2023 Date of judgment : 8th December, 2023 -------------------------------------------------------------------------------------------------------- J U D G M E N T

#1. The two Writ Appeals seek to assail the judgment and order passed by the learned Single Judge of this Court in W.P.(C) No. 33 of

#2020. W.A. No. 5 of 2022 has been preferred by one Nim Pincho Bhutia (respondent no.6 in the Writ Petition) and W.A. No.7 of 2022 has been preferred by the State of Sikkim and others (respondent nos. 1, 2, 3 & 4 in the Writ Petition).

#2. The Writ Petition was preferred by Bhim Bahadur Kami and five others, who are respondent nos.1 to 6 in both the Writ Appeals (for convenience they are collectively referred to as the writ petitioners). According to the Writ Petition, Bhim Bahadur Kami was born on

10.02.1949 to late Gumaney Kami and late Echu Maya. The respondent nos. 2 to 6 claim to be the natural sons of Bhim Bahadur Kami.

#3. The Writ Petition was filed challenging an order dated

17.12.2019 passed by the Additional District Magistrate in COI Case No. 27/DM/East of 2018 and the order dated 13.10.2020 passed by the Appellate Authority in Appeal Case No. 01 of 2020 against the order dated 17.12.2019. 5 W.A. No. 05 of 2022 Nim Pincho Bhutia vs. Bhim Bahadur Rasaily/Kami & others & W.A. No. 07 of 2022 State of Sikkim & ors. vs. Bhim Bahadur Kami (Biswakarma) & others

#4. The dispute arose in the following manner: Chhoke Doma Bhutia (respondent no.5 in the Writ Petition) made a complaint to the Additional District Collector on 29.08.2018 alleging that one Gumaney Kami had fraudulently made a Certificate of Identification (COI) in favour of his sons and grandsons. It was alleged that Gumaney Kami was, however, unmarried and no one knew about his family except his brother Kancha Kami. Nim Pincho Bhutia, in his complaint dated 04.09.2018, alleged that Gumaney Kami resident of Sajong Rumtek was unmarried and a bachelor who did not possess any landed properties. His name was, however, enrolled in the Sikkim Subject Register along with his brother Chabilall Kami and two other relatives Sukmaya Kami and Birdamaya Kami. Chabilall Kami died in the year 1970. In the year 1998, Bhim Bahadur Kami applied for issuance of COI claiming to be the son of late Gumaney Kami reflecting his age as 39 years. It was further alleged that Bhim Bahadur Kami had produced Gram Panchayat recommendation of Naitam-Nandok GPU, East Sikkim, for issuance of COI instead of Sajong East Sikkim as Gumanay Kami‟s Sikkim Subject had been issued from Sajong Block. It was alleged that the East District Collectorate surprisingly issued two COIs vide serial no. 2147/DCE dated 06.10.1998 in the name of Bhim Bahadur Kami, son of late Gumaney Kami, and vide serial no. 3487/DCE dated 27.12.2007 in the name of Bhim Bahadur Rasaily (Biswakarma), son of late Gumaney Biswakarma. It was alleged that after obtaining COI, Bhim Bahadur Kami and his other family members managed to obtain COI in the following manner: 6 W.A. No. 05 of 2022 Nim Pincho Bhutia vs. Bhim Bahadur Rasaily/Kami & others & W.A. No. 07 of 2022 State of Sikkim & ors. vs. Bhim Bahadur Kami (Biswakarma) & others “Sl. No. Name & Father‟s Name of COI Holder 1 2 3 4 5 (a) Indra Kumar Rasaily S/o (Biswakarma) Bhim Bahadur Biswakarma of J.N. Rd. 4th Mile. (b) Indra Kumar Rasaily, S/o Bhim Bahadur Rasaily (Biswakarma) of J.N. Road. (a) Nanda Kumar Biswakarma Rasaily, S/o Bhim Bahadur Biswakarma (Kami) of Gnathang. (b) Nanda Kumar Rasaily (Biswakarma), S/o Bhim Bahadur Rasaily (Biswakarma) Gnathang. (a) Gyan Bahadur Biswakarma Rasaily, S/o Bhim Bahadur Biswakarma (Kami) of Gnathang. (b) Gyan Bahadur Rasaily (Biswakarma) of Gnathang. (a) Dhan Kumar S/o Biswakarma, Bahadur Bhim Biswakarma of J.N. Road. (b) Dhan Bahadur Rasaily (Biswakarma), S/o Bhim Bahadur Rasaily (Biswakarma) of J.N. Road. (a) Dil Bahadur S/o Bahadur Biswakarma, Bhim Biswakarma Gnathang. (b) Dil Bahadur Rasaily Rasaily (Biswakarma), S/o Bhim Bahadur Rasaily (Biswakarma) of Gnathang. Grand Father‟s Name of COI Holder & Detail of Sikkim Subject (i) Guman Singh Kami, Sl. No. 32, Vol. No. II, Block Sajong. Sl. No., Date Issuance of COI & Annexure i) 2160/DCE dated 31/8/2006 (enclosed as 8) (ii) Guman Singh (Kami) Rasaily, Sl. No. 32, Vol. No. II, Block Sajong. (i) Late Gumaney Kami, Sl. No. 32, Vol. No. II, Block Sajong. (ii) Gumaney Kami Rasaily, Sl. No. 32, Vol. No. II, Block Sajong. ii) 3488/DCE Dated 27/XII/2007 (enclosed as Annex- 9) i) 2131/DCE dated 30/08/2006 (enclosed as Annex- 10) ii) 3491/DCE Dated 27/XII/2007 (enclosed as Annex- 11) (i) Late Gumaney Kami, Sl. No. 32, Vol. No. II, Block Sajong. i) 2132/DCE dated 30/8/2006 (enclosed as 12) (ii) Gumaney Kami, Sl. No. 32, Vol. No. II, Block Sajong. (i) late Gumaney Kami, Sl. No. 32, Vol. No. II, Block Sajong. (ii) Gumaney Kami, Sl. No. 32, vol. No. II, Block Sajong. (i) Late Gumaney Kami, Sl. No. 32, Vol. No. II, Block Sajong. (ii) Late Gumaney Kami Rasaily, Sl. No. 32, Vol. No. II, Block Sajong. ii) 3490/DCE Dated 27/XII/2007 (enclosed as Annex- 13) i) 2159/DCE dated 31/8/2006 (enclosed as Annex- 14) ii) 3492/DCE Dated 27/XII/2007 (enclosed as Annex- 15) i) 2129/DCE dated 30/8/2006 (enclosed as Annex- 16) ii) 3489/DCE Dated 27/XII/2007 (enclosed as Annex- 17)”

#5. It was alleged that there was discrepancy in the surname of the petitioners as well as in the name and surname of Gumaney Kami in the COIs as reflected above. Various other allegations have been made by Nim Pincho Bhutia to submit that the COIs were obtained by Bhim Bahadur Kami and his family members (petitioners) by 7 W.A. No. 05 of 2022 Nim Pincho Bhutia vs. Bhim Bahadur Rasaily/Kami & others & W.A. No. 07 of 2022 State of Sikkim & ors. vs. Bhim Bahadur Kami (Biswakarma) & others misrepresenting themselves as son and grandsons of late Gumaney Kami. Nim Pincho Bhutia, therefore, sought for a thorough verification, remedial measures and stringent action if there had been any breach of the laws of the land.

#6. The Additional District Magistrate took cognizance of the written complaints filed by Chhoke Doma Bhutia and Nim Pincho Bhutia. The Additional District Magistrate concluded that Bhim Bahadur Kami was not the real or biological son of Gumaney Kami and that he acquired the Certificate of Identification (COI) by misleading the office of the Additional District Collector. Accordingly, Bhim Bahadur Kami‟s COI bearing serial nos. 2147/DCE dated 06.10.1998 and 3487/DCE dated 27.12.2007, were cancelled. The Additional District Magistrate also directed that all the COIs issued to the sons and descendents of Bhim Bahadur Kami also stood cancelled.

#7. The Appellate Authority vide final order dated 13.10.2020 upheld the order dated 17.12.2019 passed by the Additional District Magistrate and observed as under:- “1. As per the record of Sikkim Subject Register, Lt. Gumanay Kami is found recorded at Sl. No. 32 Volume No. II under Sajong Block and Suk Maya Kamini and Bidra Maya Kamani, both daughters of Lt. Gumany Kami is also found recorded at Serial No. 34 & 35 Volume No. II under Sajong Block. But the name of Shri Bhim Bahadur Biswakarma, who is elder to Bidra Maya Kamini, is not found in the Sikkim Subject Register. 2. As per record, Shri Bhim Bahadur Biswakarma had obtained his COI in the year, 1998 when he was at a mature age of 39 years old contrary to the normal practice of obtaining COI at an early age as the same is required for various official purposes within the State of Sikkim. As per record, the Appellant Shri Bhim Bahadur 3. Biswakarma had obtained his COI on the basis of Panchayat recommendations/endorsement of Naitam Nandok as reflected in the COI application form and not from his concerned block Panchayat i.e Panchayats of 8 W.A. No. 05 of 2022 Nim Pincho Bhutia vs. Bhim Bahadur Rasaily/Kami & others & W.A. No. 07 of 2022 State of Sikkim & ors. vs. Bhim Bahadur Kami (Biswakarma) & others is also Sajong-Rawtey Rumtek wherein Lt. Gumanay Kami‟s name is found recorded in the Sikkim Subject Register. At the time of applying COI of the Appellants sons, 4. the Panchayat recommendation/endorsement on the COI application form has been obtained from Panchayats of Gnathang, East Sikkim and not from Sajong-Rawtey Rumtek wherein Lt. Gumanay Kami‟s name is found recorded in the Sikkim Subject Register. 5. The details recorded in the duplicate COI issued to the appellant and his sons in the year, 2007 is not ditto with the original COI‟s issued in the year 1998 & 2006 and even the issue No. of the COI is also found differing from the original COI. 6. On close perusal of all the documents of the Appellants‟ descendents like Birth Certificate, Education qualification Certificate, Ration Card, School Transfer Certificate, Driving Licence, etc. issued prior to year, 2007 their surname is uniformly recorded as Biswakarma and found recorded as father surname Biswakarma only. However, the Certificate of Identification of the Appellant issued in the year, 1998 & 2007 and in the Certificate of Identification of the Appellants sons issued in the year, 2006 and 2007, there is variation in the surnames of all the individuals from Kami to Rasaily (Biswakarma) to Biswakarma (Kami) to Rasaily etc. And further Lt. Gumanay Kami‟s name reflected in their COI also differs from Gumanay Kami to Guman Singh Kami to Gyaney Kami to Guman Singh (Kami) Rasaily to Gumanay Kami Rasaily etc. which has raised serious concern over the authenticity of names. Such correction is normally done through affidavit which is not done in this case. 7. On perusal of record, it is also found that one Bhakta Bahadur Lohar resident of Busuk has also obtained COI bearing Sl. No. 559/DCE dated 23/01/1996 through Lt. Gumanay Kami claiming to be his son. To this effect the Ld. Additional District Magistrate has also reported that various persons have obtained COI through Sikkim Subject records of Lt. Gumanay Kami. 8. The record also transpired that expansion of family members of late Gumaney Kami which has not been taken into cognizance during the proceeding in the trial court. 9. The record did not show any application for re- issue of COI with another name. But the COI is found to have been issued repeatedly in various surnames. The marital status of late Gumaney Kami which 10. was one of the basic point of contention raised by the respondent as to Shri Bhim Bahadur Kami being the biological/legal son of Gumaney Kami was never contested by the appellant in the trial court by presenting witnesses such as Gumanay Kami‟s descendents in person before the court.”

#8. The Appellate Authority rejected the appeal preferred by Bhim Bahadur Kami against the order dated 17.12.2019, inter alia, on 9 W.A. No. 05 of 2022 Nim Pincho Bhutia vs. Bhim Bahadur Rasaily/Kami & others & W.A. No. 07 of 2022 State of Sikkim & ors. vs. Bhim Bahadur Kami (Biswakarma) & others the ground that Bhim Bahadur Kami did not produce any witness to establish that he was the son of Gumaney Kami.

#9. The Writ Petition filed by Bhim Bahadur Kami and the five other petitioners assailing the orders dated 17.12.2019 and 13.10.2020 was allowed by the learned Single Judge. In the Writ Petition, amongst the various grounds taken, it was also alleged that Bhim Bahadur Kami was not given a copy of the complaint and that the rest of the petitioners had not even been issued a show-cause before their COIs were cancelled.

10.(i) The learned Single Judge held that the Additional District Magistrate had exercised authority exceeding his jurisdiction; that there was violation of principles of natural justice on account of non- furnishing of the complaints to the petitioners; lack of opportunity to put forth their own case and to cross-examine the witnesses. The learned Single Judge thus arrived at the following conclusions:- “30. In light of the foregoing discussions it concludes that; (i) (ii) The COIs of all the Petitioners are found to be legal, correct and valid in terms of the Final Report of the Commission headed by Hon’ble Shri Justice Malay Sengupta (Retd.) dated 18-08-2018, submitted to the State Government on 01-09-2018 and accepted by it on 27-09-2018 and thereafter filed by the State Government before the Division Bench of this Court on 02-11-2018 in WP(PIL) No.06 of 2015. Consequently, the impugned Order dated 17-12- 2019 of Respondent No.3 whereby the COIs issued to each of the Petitioners were cancelled and the impugned Order dated 13-10-2020 of Respondent No.2, which upheld the impugned Order of Respondent No.3 dated 17-12-2019, are set aside and quashed, both being illegal, arbitrary in violation of the principles of natural justice and lacking jurisdiction. (iii) No further effect shall be given to the operation of the said impugned Order of Respondent No.3 10 W.A. No. 05 of 2022 Nim Pincho Bhutia vs. Bhim Bahadur Rasaily/Kami & others & W.A. No. 07 of 2022 State of Sikkim & ors. vs. Bhim Bahadur Kami (Biswakarma) & others dated 17-12- 2019 and of Respondent No.2 dated 13-10-2020.”

10.(ii) The first conclusion arrived at by the learned Single Judge was based on the following facts. On 28.09.2015, one Biraj Adhikari had filed a Writ Petition in the nature of a public interest litigation, being WP(PIL) No. 06 of 2015 – Biraj Adhikari vs. State of Sikkim and others (PIL), seeking enquiry into and cancellation of 31180 fake cases of COI. The Division Bench had issued notice to the State respondents and the Central Government. The State respondents had filed affidavit on 16.04.2016 proposing to verify the alleged fake COIs. The Division Bench vide order dated 20.06.2016 directed the State respondents to carry out scrutiny and enquiry as contemplated in the affidavit filed by the State respondent. It was also directed that the District Collector shall make enquiry strictly in accordance with law. Thereafter, pursuant to the order passed by the Division Bench dated 24.08.2017, the State Government issued notification constituting a Commission headed by a retired Judge of this Court to (i) inquire into allegations of issue of doubtful/fake Certificate of Identification; (ii) recommend issuance and digitisation of Certificate of Identification in the smart card format containing relevant information; (iii) submit its report within three months from the date of issue of notification; and (iv) the Commission may adopt its own procedure for performance of its functions. The scrutiny was carried out by the concerned Commission which submitted its Report dated 18.08.2018 to the State Government, which accepted the Report on 27.09.2018. The State Government filed the report before the Division Bench on 02.11.2018. Thereafter, the Division Bench of this Court disposed of the PIL on 03.12.2019. 11 W.A. No. 05 of 2022 Nim Pincho Bhutia vs. Bhim Bahadur Rasaily/Kami & others & W.A. No. 07 of 2022 State of Sikkim & ors. vs. Bhim Bahadur Kami (Biswakarma) & others

10.(iii) The learned Single Judge in view of the affidavit submitted by the State on 16.04.2016 assumed that the process of verification of records of 31180 doubtful cases of Sikkim Subject Certificates and COIs were obtained from the districts; the details mentioned by the applicants in their applications for grant of COIs were verified from the original register maintained; and that if cases were found to be doubtful on scrutiny they would have been referred to the concerned District Collector for further inquiry and cancelled, if necessary.

10.(iv) The learned Single Judge noted that Chhoke Doma Bhutia had filed a complaint on 29.08.2018 and Nim Pincho Bhutia on

04.09.2018 against Bhim Bahadur Kami and the other petitioners when the PIL was before the Division Bench of this Court. The learned Single Judge opined that the order dated 17.12.2019 passed by the Additional District Magistrate reflected that during the PIL before this Court parallel proceedings with regard to the complaints filed were being carried out and upon the disposal of the PIL on 03.12.2019, order dated 17.12.2019 was passed by the Additional District Magistrate and thereafter, the order dated 13.10.2020 by the Appellate Authority. The learned Single Judge considered the judgments of the Hon‟ble Supreme Court in State of Andhra Pradesh vs. Raghu Ramakrishna Raju Kanumuru (M.P.)1, Arunima Baruah vs. Union of India and Others2, Jai Singh vs. Union of India & Others3, J. Chitra vs. District Collector & Chairman, State Level Vigilance Committee, Tamil Nadu & Others4 and opined that parallel remedies in respect of the same matter could not be pursued at the same time.